I was recently working on a Federal Rail Safety Act (FRSA) Whistleblower Case involving an argument by the Railroad that my client’s claim had been released. It reminded me that the Railroads as a whole are becoming much more aggressive with their Releases. While it is not an issue when a railroad employee with a Federal Employer’s Liability Act (FELA) claim or Whistleblower Claim arising under the FRSA is represented by counsel, often times injured railroad employees will settle smaller cases on their own. I always encourage railroaders to contact my office, even if I am not directly involved in the case, to get advice as to how to proceed if the claim is relatively small. I always caution those individuals to be aware of what the railroad will try to include in its Release.
What Is a Release?
A Release is essentially the legal document that memorializes the agreement between the employee and the railroad. It will contain the monetary amount of the settlement, which is accepted by the employee in exchange for “releasing” certain claims. Railroad employees naturally assume that they are only releasing any claim related to the particular injury. However, railroads are increasingly including within the Release claims and potential claims that the employee may not be aware of. For example, the railroads will seek to include any known prior claim, such as any time claims arising under the Railway Labor Act, other injuries and potential cumulative trauma disorder claims.
What About My Unknown Injuries?
It is particularly egregious when the railroad attempts to have the employee release unknown claims. The law is somewhat unclear on this issue. Some cases hold that an employee can only release claims that he or she is aware of. In other words, if an employee is aware that they have what may be a cumulative trauma knee injury, that may be released if the language of the document is broad enough. More troublesome, however, are the cases that hold that an employee may release injuries that are unknown. In those cases, the question is whether the employee is releasing injuries that may come about from known risks. This is much broader than the known injury claim. So, for example, if an employee injures his hand and is out of work for one month, and settles the case directly with the Claims Agent, and later develops cancer as a result of exposure to diesel exhaust that Release may bar the cancer claim if it included reference to risks associated with diesel exhaust.
It Could Happen To You
I decided to blog about this issue based upon a case I am currently working on. My client was injured attempting to throw a defective and out of adjustment railroad switch. He lost minimal time from work and settled the FELA injury case one week after the incident. The next day, the employee received a charge letter claiming that he had improperly thrown the switch. After an investigation, the employee was assessed thirty (30) days off of work. Critically, this was step two with a railroad that had a three step termination policy. Several months later, the employee did admittedly violate a rule which resulted in a derailment. However, because of the fallacious second step charge, the employee was terminated. We immediately filed an FRSA Whistleblower Case and the railroad contends that the FELA Release, which did included language releasing any FRSA cases, barred the FRSA case. We, of course, are fighting this issue vigorously. The outcome is yet to be determined.
Before You Sign a Release…
Accordingly a word of caution – please confer with experienced railroad counsel prior to signing any Release. It is important to fully understand what you are giving up to make sure that the terms are acceptable.
By Matt Darby